Wakim v State of New South Wales [2017] NSWSC 1492

Supreme Court New South Wales

Medium Neutral Citation: Wakim v State of New South Wales [2017] NSWSC 1492 Hearing dates: 3 October 2017 Date of orders: 02 November 2017 Decision date: 02 November 2017 Jurisdiction: Common Law Before: Fagan J Decision: The plaintiff is to pay the defendant's costs assessed as a gross sum of $310,000. Catchwords: Costs – gross sum assessment – protracted complex proceedings – party against whom order sought impecunious and unrepresented Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Chaina v Presbyterian Church (NSW) Property Trust (No. 26) [2014] NSWSC 1009 Hamod v State of New South Wales and Anor [2011] NSWCA 375 Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 Wakim v Kolotouros; Wakim v State of New South Wales [2017] NSWSC 697 Category: Costs Parties: Elias George Wakim (plaintiff/respondent) State of New South Wales (defendant/applicant) Rocco Ardino (respondent) Representation: Counsel: Mr Gregory George (plaintiff – amicus curiae) Mr Matthew Hutchings/Ms Stephanie Patterson (defendant/applicant) Mr David Lloyd (Mr Ardino/respondent)

Solicitors: Rebecca Whittle, Henry Davis York Lawyers (defendant/applicant) File Number(s): 2013/262708

Judgment 1. On 29 May 2017 judgment was entered for the defendant in these proceedings and it was ordered that the plaintiff pay the defendant's costs. It was further directed on that day that any notice of motion for a special costs order should be served by 5 June 2017. On the latter date the defendant filed a notice of motion seeking an order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) that the plaintiff pay the defendant's costs in a specified gross sum. That application was heard on 3 October 2017, when affidavits of the defendant's solicitors deposing to the quantum of costs were read. Counsel supplied written submissions dated 6 July 2017 in support of a gross sum order and these were supplemented in oral argument. 2. Written submissions in opposition to the making of a gross sum costs order were provided to the court by Mr George of counsel, as amicus curiae in the interests of the plaintiff. He appeared at the hearing of the defendant's notice of motion on 3 October 2017 as amicus and made additional oral submissions. No evidence was tendered or led on behalf of the plaintiff. 3. Other orders were sought in the defendant's notice of motion but those claims for relief have been resolved. All that remains is to determine whether a gross sum costs order should be made against the plaintiff, if so for how much and what order should be made with respect to the costs of the defendant's notice of motion.